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Litigating State Secrets: A Comparative Study of National Security Privilege in Canadian, U.S. and English Civil Cases

Ottawa Law Review, Vol. 41, No. 2, pp. 289-323, 2010

36 Pages Posted: 16 Apr 2011 Last revised: 21 Apr 2011

Jasminka Kalajdzic

University of Windsor - Faculty of Law

Date Written: January 1, 2011

Abstract

One of the main obstacles in criminal and civil proceedings involving intelligence and executive officials is the objection to disclosure of information and evidence on the basis of national security privilege. Known as the "state secrets privilege" in the United States and “public interest immunity” in England, this evidentiary rule has been invoked successfully in an increasing number of cases in the US and England. Indeed, the privilege has been identified as one of the most serious obstacles to effective human rights remedies. In this essay, I discuss the use of national security privilege in civil litigation in the three jurisdictions, focusing specifically on the role the privilege has played in blocking claims by purported torture survivors and other victims of anti-terrorism activities in the US and England. I also evaluate the potential impact of the privilege on a torture survivor’s civil claim, when such a case ultimately goes to trial in Canada. My conclusion, based on the approach courts have taken to the public interest balancing exercise, is that it will be very difficult for private litigants to obtain disclosure of information over which a claim of privilege has been made.

Keywords: national security, privilege, civil litigation

JEL Classification: K10, K40, K41

Suggested Citation

Kalajdzic, Jasminka, Litigating State Secrets: A Comparative Study of National Security Privilege in Canadian, U.S. and English Civil Cases (January 1, 2011). Ottawa Law Review, Vol. 41, No. 2, pp. 289-323, 2010. Available at SSRN: https://ssrn.com/abstract=1809925 or http://dx.doi.org/10.2139/ssrn.1809925

Jasminka Kalajdzic (Contact Author)

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4 N9B 3P4
Canada

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